Citation Nr: 1425894
Decision Date: 06/06/14 Archive Date: 06/16/14
DOCKET NO. 11-17 171 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky
THE ISSUE
Entitlement to service connection for a gastrointestinal disorder, to include pancreatitis, esophagitis, sigmoid diverticulosis, and possible irritable bowel syndrome, to include as secondary to exposure to contaminated water at Camp Lejeune.
REPRESENTATION
Appellant represented by: Margaret A. Matthews, MSW
ATTORNEY FOR THE BOARD
D. Cherry, Counsel
INTRODUCTION
The Veteran served on active duty from September 1976 to September 1977.
This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran's claims file is currently under the jurisdiction of the VA RO in Louisville, Kentucky.
In April 2013, the Board remanded the claim for further development.
The Board's review includes the paper and electronic records.
In September 2010, the VA RO in Boston, Massachusetts denied entitlement to service connection for a mood disorder, not otherwise specified; an anxiety disorder; and a personality disorder not otherwise specified (claimed as depression, anxiety, and posttraumatic stress disorder (PTSD).
The issues of entitlement to service connection for an eating disorder and whether new and material evidence has been submitted to reopen a claim of entitlement to a mood disorder, not otherwise specified; an anxiety disorder; and a personality disorder not otherwise specified (claimed as depression, anxiety, and PTSD (see statement of Veterans' spouse received in July 2011 indicating that he has an eating disorder and depression) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2013).
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required.
REMAND
As noted by the Board in its April 2013 remand, the Veteran's agent in a June 2011 statement indicated that the Veteran has been receiving treatment at the Boston VA Medical Center since 1981. The Veteran had only submitted some treatment records dated in 1981 from the West Roxbury VA Medical Center. The Board noted that there is more than one facility within the Boston VA Healthcare System. The Board directed the Appeals Management Center (AMC) to ask the Veteran to identify all facilities within the Boston metropolitan area where he has been treated since 1981 and obtain all records from the Boston VA Healthcare System since 1981. The Board also noted that since the Veteran's primary care provider is Dr. Lowney, his records are potentially relevant to this claim and directed that the AMC should obtain all of his records.
The AMC did not contact the Veteran about his VA treatment or attempt to obtain any VA treatment records or records from Dr. Lowney. The AMC instead relied on a July 2013 statement of the agent in which she stated that she was submitted the notes and records of Dr. Lowney and indicated that the records from the identified facilities are all the facilities where the claimant had received treatment since 1981. The agent, however, did not submit the notes and records of Dr. Lowney, which she identified as exhibit two, as she claimed. Instead, she submitted a statement from Dr. Lowney and various letters to him from other doctors. Accordingly, an attempt must be made to obtain the records from Dr. Lowery notwithstanding the agent's assertion that she submitted the relevant records. Moreover, while the agent claimed that the Veteran received no VA treatment, the doctor prepared the December 2013 medical opinion indicated that he reviewed the VA electronic medical records. Thus, there are outstanding VA treatment records that must be obtained even though the agent acting on the Veteran's behalf failed to identify them.
Accordingly, the case is REMANDED for the following action:
(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)
1. The AOJ should ask the Veteran to identify all treatment for his gastrointestinal disorder since July 2013 and to identify all facilities within the Boston metropolitan area where he has been treated since 1981. Obtain all identified records, to include all identified records from the Boston VA Healthcare System since 1981. Obtain all records of Dr. Lowney. Any records obtained pursuant to the foregoing should be associated with the Veteran's claims folder. Regardless of the appellant's response, obtain all of the Veteran's electronic treatment records from the Boston VA Healthcare System.
2. Thereafter, if and only if any additional records besides the Veteran's electronic records from the Boston VA Healthcare System, which were already reviewed by the VA doctor who prepared the May 2011 and December 2013 addendums to the April 2011 VA examination report, are obtained by the AOJ, the AOJ must have the VA doctor who prepared the May 2011 and December 2013 addendums to the April 2011 VA examination report review the Veteran's claims file. If that doctor is unavailable, the AOJ should arrange to have the Veteran's claims file reviewed by the April 2011 VA examiner if he is available and if not another doctor.
The doctor is to address the following with full supporting rationales:
The doctor must opine whether there is a 50 percent or greater probability that the esophagitis found during the February 2007 private gastroscopy, the sigmoid diverticulosis found during the January 2007 private pelvis computed tomography (CT) scan, the possible irritable bowel syndrome as diagnosed by Dr. Lowney in January 2012, and any other current gastrointestinal disorder other than pancreatitis are related to exposure to contaminated water at Camp Lejeune during active service.
A complete rationale for any opinion offered must be provided.
3. After the development requested, the AOJ should review the addendum to the examination report, if it has to be obtained, to ensure that it is in complete compliance with the directives of this REMAND. If the addendum is deficient in any manner, the AMC must implement corrective procedures at once.
4. Thereafter, the AOJ should review all the evidence of record and must readjudicate the issue on appeal. If the benefit is not granted, the appellant and his agent must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).